Professor Kim Forde-Mazrui opened the doors of his Race and Law seminar
to the public March 2 in an effort to bring greater understanding of
recent incidents of racially motivated hate speech at the University
and suggest possible legal responses, at an event sponsored by the Center
for the Study of Race and Law and the Black Law Students Association.

“Issues of hate speech and hate crime require at least two kinds
of responses; one is social education and one is legal education,” Forde-Mazrui
said. “Only if we take seriously the competing interests in favor
and against regulating hate speech are we going to be able to navigate
the legal concourse.”

Forde-Mazrui noted that one-fifth of minority college students report
they have been verbally or physically harassed, quoting a figure from
the National Institute Against Prejudice and Violence. He described
several cases of such harassment at colleges nationwide, but returned
to the University of Virginia, where in February 2003 undergraduate
Student Council presidential candidate Daisy Lundy was attacked and
verbally assaulted by a man who told her, “No one wants a nigger
to be president.” More recently a string of incidents have been
reported on main Grounds, where some African-American students were
painting Beta Bridge when whites drove by and told them their place
was in the cotton fields. In another incident someone scrawled “slave
auction” over a flyer advertising a date function for the Organization
of African Students. In response, Student Council President Noah Sullivan
has proposed a University Judiciary Committee ballot referendum that
asks, “Do you want the UJC to create specific and severe punishment
guidelines for judicial offenses primarily motivated by hatred based
on race, ethnicity, gender, sexual orientation, religion, or disability?" But
even if the referendum is passed, such guidelines could be dismissed
by courts.

“To my knowledge, every university that has had a hate speech
code has had it struck down,” Forde-Mazrui explained, including
the University of Michigan, the University of Wisconsin, and Stanford.
While Michigan’s and Wisconsin’s codes were struck down
because of the First Amendment, Stanford was not beholden to federal
constitutional law regarding free speech because the school is private.
The Stanford code instead was struck down under a California statute
protecting free speech. “The First Amendment provides real constraints
on what can be done.”

Students from the Race and Law class and community
members discuss the legal ramifications of hate speech.

The class noted several exceptions that allow for limitations on free
speech, including fighting words (words or actions intended to threaten
or promote violence), commercial speech (you can’t lie about
your product), defamation or libel, and obscenity, such as child pornography.

There are many reasons to uphold free speech; limiting speech could
have a chilling effect on dissent, for example. “Many people
wanted to clam people up, like Malcolm X and others, for criticizing
government,” Forde-Mazrui explained. The government, if allowed,
might censor those most critical of its legitimacy.

The R.A.V. ruling said the content of a message can’t
be singled out for restriction, but the motivation behind the words—whether
the words were intended to harm—is key to deciding whether speech
could be limited. Mitchell tested the standing of laws that
mandate additional punishment for hate crimes, as a defendant convicted
of assaulting a white man because of his race alleged that his First
Amendment rights were violated by the additional punishment.

On Wisconsin’s side, “there’s this tradition of
motive playing a role in sentencing,” Forde-Mazrui noted. The
justices ruled in Mitchell that enhancing punishments for
hate crimes was legal, focusing on the fact that the victim was selected
because of his race.

“It’s a kind of terrorism,” Forde-Mazrui said. “Part
of what terrorism is about is sending fear to other people.”

In Virginia v. Black, a Virginia statute making it a felony
to burn a cross was struck down by the Court. The statute mandated
that the jury was entitled to find beyond a reasonable doubt that intent
to intimidate occurred simply because a cross burned. “Without
requiring affirmative proof of intention to intimidate, the statute
violates the First Amendment,” Forde-Mazrui explained. The Virginia
statute “allows for weak proof of intimidation” and comes
close to saying “simply burning a cross is illegal.” Justice
Clarence Thomas’s opinion, however, suggested that simply burning
a cross was itself proof of intimidation.

Forde-Mazrui said Congress would probably not try to enact federal
hate-speech legislation because courts have already struck down the
federal Violence Against Women Act and in Lopez (1995), limited
Congress’s purview of regulating commerce, a power delegated
by the Constitution that had been used broadly in the past. However,
states are only limited by the First Amendment. So is there a legal
way to prohibit hate speech at the state level? Could U.Va. enact a
hate-speech code?

Forde-Mazrui suggested that such legislation might be possible if
the law includes intent to intimidate, selection of the victim based
on criteria (race, sexual orientation, gender, etc.), and that the
speech be fighting words.

The courts would view derogatory words as overbroad, he said, but “fighting
words are something we can identify….It would get kind of in-your-face
statements.”

Forde-Mazrui said the threat to intimidate may not even be a necessary
component. Mitchell says you can punish bias-motivated violence
and “use the [defendant’s] words both at the time [of the
crime] and in prior speech or association as evidence of [his] motive.

“Fighting words, the manner, is treated essentially like conduct—as
a non-speech activity—so you could prohibit all fighting words,” he
added. “Then based on Mitchell you could selectively
prohibit only fighting words that are motivated by selection criteria,
[such as the race, sex, religion, or sexual orientation of the victim].” Reported by M. Wood